If you have a pending child custody, divorce, or other family law case, there’s a good chance that mediation will either be required or recommended. While many domestic disputes ultimately end up in front of a judge, they don’t have to. You can settle your family law case with minimal court involvement by using mediation, a process that offers a number of advantages over traditional litigation.
If you’re new to Arizona’s family law court system, you may have heard about mediation but still want to learn more. The dedicated team at Cohen Family Law offers answers to some of the most frequently asked questions.
What is Mediation?
Mediation is an alternative dispute resolution (ADR) method by which the parties confidentially negotiate and, hopefully, settle their family law cases with the help of a neutral third party known as a mediator. Some issues must be mediated before being tried, such as child custody and parenting time. For other matters, mediation is strongly recommended.
What is the Role of the Mediator?
Mediators are neutral and have no stake in the ultimate outcome of mediation. The mediator, therefore, does not represent either party. Instead, the mediator will help the parties calmly discuss their issues, reach common ground, and settle as many issues in their case as they can. One way this is done is by helping the parties consider the benefits of settling their lawsuits versus the risks of taking them to trial.
Because mediation is an out-of-court proceeding, not a trial, the mediator cannot force the parties to agree to anything. But he or she may advise a party to accept an offer instead of trying it before the judge.
Are Mediation Discussions Confidential?
Mediation is confidential. With very few exceptions, which likely will not apply to your case, anything you talk about in mediation cannot be brought up later in court in any subsequent trial or hearing. This guarantee is important because it allows the parties to freely and candidly discuss, and hopefully settle, their differences.
There are some limited exceptions to this confidentiality protection, including:
- If both spouses agree to disclose otherwise confidential information to the court
- If the mediator suspects one or both parents are abusing their child
- Any other disclosure that may be required by law
Offers to settle the case are also confidential. Say, for instance, that during mediation you offer your spouse a certain amount of monthly spousal support. You are unable to reach an agreement on spousal support so the issue goes to trial. At trial, you argue that you should not have to pay any support. The other spouse cannot bring up the offer you made in mediation to argue that you should pay.
Which Issues Can Be Mediated?
Mediation can be used to successfully resolve nearly every family law case imaginable. Some of the most commonly mediated issues include:
- The division of marital property and debts
- Spousal support (also called alimony)
- Child custody and parenting plans
- Child support
The court will typically order the parents in a custody and parenting time dispute to conduct mediation through its Conciliation Services. However, private mediation may be used to resolve custody and the other above issues.
What are the Benefits of Mediation?
Compared to trying your family law case in court, there are several potential advantages to mediation. For example:
- Saving time, money, and stress
- Allowing parties to settle their issues on their own terms
- The parties can devise creative solutions that a judge likely will not
- The parties know more about their case than anyone and are best positioned to resolve it
- Maintains confidentiality and privacy
- Avoids the embarrassment of a public trial
- Facilitates productive communication between the parties
- Paves the way for future discussions if disputes arise
Is It Necessary to Resolve All Issues in Mediation?
Ideally, all of your domestic issues will be negotiated and settled in mediation. But this isn’t necessary. Mediation can resolve some or all matters arising out of your case, and parties may use mediation more than once as needed or desired. Whatever is settled in mediation will be reduced to a written agreement for the judge’s review and approval; anything not settled will be tried later.
Can I Have My Lawyer Attend Mediation With Me?
You can and should have a lawyer present with you during mediation. Your lawyer will argue your position to the mediator, explain to you the meaning and consequences of any proposed terms of the settlement, and provide general legal counsel. Your lawyer will ultimately recommend you to accept a settlement offer or take your case before the judge. Finally, an attorney will help draft and negotiate the terms of any settlement reached.
What is the Process of Mediation?
The parties usually agree ahead of time on who will be their mediator. Mediation typically takes place in a law firm’s office, with the parties and their attorneys present. After meeting with everyone to provide an overview of the process, the parties will usually go to separate rooms. The mediator will meet privately with both parties and their lawyers to learn more about their positions in the case. At some point during this process, the mediator may request (or a party may offer) a proposed settlement on one or all issues.
The mediator will continue going back and forth between the rooms to further develop the settlement offer, find common ground, and encourage settlement. At any time a party may request to discuss the offer or any other matter privately with their lawyer. The mediator continues hammering out the details and finding consensus where possible.
Eventually, if a deal is reached, it will be reduced to a written document known as a Rule 69 Agreement. This outlines the basic terms of an agreement between the parties. Your lawyer will help draft this document, advise you as to its meaning, and answer questions or concerns you have. A judge will later review the agreement and, if approved, enter it as a court order. Whatever is not settled will be tried at a later date or, if the parties desire, mediated again.
Is Mediation Right for Everyone?
Mediation is not advisable in every case. If any of the following circumstances apply to you, it’s a good idea to speak with your attorney right away:
- The parties have a high degree of conflict between them
- The parties are unable or unwilling to negotiate or even communicate with each other
- There are allegations of domestic violence or child abuse
- One spouse is accused of hiding marital assets or destroying evidence
- There is a major power imbalance between the parties (e.g. one has more financial resources than the other)
- One party has psychologically manipulated or dominated the other
Contact Our Phoenix Family Law Mediation Attorney
If you’re thinking about mediating your family law case, or a judge has ordered mediation, it’s time to learn more about how it works. We can serve as a private mediator in your case or we can represent you and your interests during mediation. To get started, connect with Cohen Family Law today.